This is the second of two posts. In the first, we considered what was likely to come of House testimony today by Hunter Biden’s longtime friend and business partner Devon Archer. With that as background, I now turn to this past weekend’s dust-up: Did federal prosecutors in the Southern District of New York (SDNY) — i.e., the Manhattan U.S. attorney’s office that prosecuted Devon Archer — try to have Archer imprisoned so that he could not testify as scheduled this morning before the House Oversight Committee that is investigating the Biden family influence-peddling business?

That is not what happened. In sending a Saturday letter to the court, SDNY prosecutors did not try to prevent Archer’s appearance at today’s behind-closed-doors committee hearing. It is certainly possible that the feds were sending Archer a more subtle signal that his House testimony would not help him in his five-year effort to avoid imprisonment for his fraud conviction (and so maybe he should think twice about implicating the Bidens in crimes). Because of how politicized the Biden Justice Department is — and how deeply political it has been in the Hunter Biden case — that possibility cannot be discounted. Yet an innocent interpretation of the prosecutors’ letter is also plausible, and was indeed posited in the SDNY’s follow-up letter on Sunday. On that score, we should bear in mind that, though SDNY prosecuted Archer, it is not involved in the Hunter Biden investigation (which is ostensibly being handled by the Delaware U.S. attorney but appears to be substantially controlled by Main Justice in Washington). Plus, the Bidens cannot have been pleased by the SDNY’s prosecution of Archer, which began in the Trump era and has continued in the Biden era.

Some background: Archer has been fighting his conviction for five years and fighting his sentence for three years. The presumption in federal criminal law is that a defendant who has been found guilty, and certainly one for whom a sentence of incarceration has been imposed, should be imprisoned forthwith. Nevertheless, SDNY Judge Ronnie Abrams (who had thrown out Archer’s 2018 fraud conviction post-trial, only to have the jury’s guilty verdict reinstated by the Second Circuit appellate court in 2020) allowed him to remain on bail pending his appeal after she finally sentenced him in February 2022. (Federal law allows this if the sentencing judge finds that there is a reasonable chance the defendant will prevail on appeal.)

The SDNY prosecutors had argued for a significantly longer sentence than the one Abrams imposed and obviously believed he should be in custody. It was not until June 7, 2023, that a three-judge panel of the Second Circuit upheld his conviction and sentence. Arguably, a surrender date should have been set for Archer at that point. To avoid imprisonment, however, Archer filed a Hail Mary petition for rehearing by the entire Second Circuit bench. Such petitions are routinely denied, and Archer’s was, on July 18. A decision of an appellate court is not technically final until the court’s “mandate” is issued. That happened on July 25 — last Tuesday.

At that point, the line SDNY prosecutors on the case — not the district U.S. attorney, and not anyone in Justice Department leadership — had what would in normal times be considered a routine conversation with Archer’s lawyer, pointing out that, with the mandate having been issued, there was no longer any reason to delay fixing a date for him to surrender to serve his sentence at a U.S. prison. To be clear, the SDNY did not demand that Archer surrender; the prosecutors instead respectfully asked his lawyer, Matthew Schwartz, to propose a reasonable surrender date. Moreover, experienced criminal litigators know that the Bureau of Prisons often takes weeks — even after a judge sets a surrender date — to designate a prison where the sentence is to be served. That is, even if a surrender date had been agreed upon, it would have been several weeks before Archer would actually have to surrender, so nothing would have prevented his House testimony today.

As in the past, rather than come to terms with the inevitability of his prison term, Archer’s team decided to stall. As prosecutor Negar Tekeei’s Saturday letter to Judge Abrams relates, Schwartz said his client “believes it is premature to set a report date in light of his anticipated continuing appeal as well as the newly-discovered sentencing error that the government has now conceded. Counsel for Mr. Archer will put in a response to the Government’s request by Wednesday.”

The “sentencing error” Archer’s lawyers cite is sure to be unavailing. Abrams was generous to Archer in setting the length of his sentence. That is obviously why Archer did not raise a sentencing guidelines error on appeal, at least initially. The supposed error was first mentioned during the oral argument of the appeal at the Second Circuit on May 9: Abrams is said to have calculated Archer’s guidelines offense level to be 31 (calling for a sentence between 108 and 135 months), while the SDNY had calculated it to be level 29 (between 87 and 108 months). The guidelines, however, are only advisory, and Abrams largely ignored them in meting out a sentence of just twelve months — way below levels 29 and 31. Even though Archer had failed to raise this “issue” in his brief, right after the May 9 oral argument, the Second Circuit directed the parties to file supplemental briefs on the matter. The court then issued its ruling against Archer on June 7. Ergo, because (a) the guidelines error (if it was an error) made no difference, (b) the appellate court has already ruled after the issue was briefed, and (c) Archer probably waived such a claim of error in any event, there is no reason to further delay the setting of his surrender date just so Archer can file yet another meritless appeal.

If the SDNY prosecutors believed Archer was giving them the runaround, they had good reasons.

So the prosecutors did what any competent prosecutors would do. Knowing Archer was planning to respond on Wednesday (August 2) to the government’s position that he should soon surrender to begin serving his sentence, the prosecutors decided they’d better make their position formally known to the judge, to wit: Archer won’t agree voluntarily to a surrender date, so the court will have to set one.

If it is suspicious that the prosecutors would send this letter on a Saturday before Archer’s scheduled House testimony on Monday, that is mainly because the Justice Department has acted so politically in the Hunter Biden case that it cannot be given the benefit of the doubt.

Still, as I can attest, SDNY prosecutors frequently work Saturdays (and Sundays). If the prosecutors’ conversation with Archer’s lawyers happened between Wednesday and Friday of last week, and they knew Archer’s lawyers were planning to file a submission with the court on Wednesday of this week, it would not be unusual or unreasonable for the government to write to the judge on Saturday. What’s more, if the line prosecutors were thinking about Archer’s House testimony at all (which they may not have been — especially since the SDNY is not known to be involved in Delaware U.S. attorney David Weiss’s Hunter Biden case), they may have figured that a letter to the court seeking a surrender date for Archer would not sound any less sinister a day or two after Archer’s closed-door testimony than a day or two before.

In any event, if the Justice Department’s point was to convey an unsavory message to Archer, that message is that the House committee can’t help him — he is going to jail regardless of whether he spills the Biden beans. But the SDNY prosecutors may not have been doing that, and they did not, in any event, seek to have Archer put in prison so he would be unable to appear at the House hearing.